Citation Nr: 1334076 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-31 309 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUES 1. Whether the appellant filed a timely notice of disagreement (NOD) to the RO's May 2009 decision, denying eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 2. Legal entitlement to a one-time payment from the FVEC Fund. ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the RO, which denied the appellant's claim for entitlement to a one-time payment from the FVEC Fund. In October 2012, the RO issued a statement of the case as to whether the appellant's NOD was timely. In November 2012, VA received the appellant's substantive appeal. In addition to reviewing the appellant's paper claims file, the Board has surveyed the contents of his Virtual VA file. The Board will address below the issue of timeliness for initiating an appeal of the May 2009 rating decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of legal entitlement to a one-time payment from the FVEC Fund is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action is required. FINDINGS OF FACT 1. In May 2009, the RO notified the appellant of the denial of entitlement to a one-time payment from the FVEC Fund. 2. VA's receipt of a written communication from the appellant in July 2009 is accepted as the date of a valid NOD, with respect to the May 2009 rating decision. CONCLUSION OF LAW The appellant filed a timely NOD with respect to the May 2009 denial of entitlement to a one-time payment from the FVEC Fund. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claim as to the issue of timeliness for initiating an appeal. II. Analysis Whether a NOD has been filed on time is an appealable issue. 38 C.F.R. §§ 19.34, 20.101(c). If a claimant fails to complete an appeal within the required time, it is incumbent upon the Board to reject the application for review on appeal. This is not a matter within the Board's discretion; the timeliness standards for filing appeals to the Board are prescribed by law and regulation. An appeal consists of a timely notice of disagreement in writing and, after a statement of the case has been furnished, a timely substantive appeal. The NOD and substantive appeal must be filed with the VA office from which the claimant received notice of the determination being appealed (RO). 38 C.F.R. § 20.300. A claimant, or his or her representative, must file a NOD with a determination by the agency of original jurisdiction (RO) within one year from the date that the RO mails notice of the determination. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). Here, the RO denied the appellant's claim for entitlement to a one-time payment from the FVEC Fund on May 25, 2009; and notified the appellant of that decision on the same date. VA received correspondence from the appellant on July 27, 2009, stating that he was informed of the denial of his claim; that he was enclosing additional evidence, including a "Roster of the 14th Infantry under Col. Warren A. Minton, wherein [his] name was included;" that he had been wounded and his name was not processed by U.S. officers; that he should be given "a chance to be heard" by local personnel; and that he could not afford a lawyer to represent him in his case. In February 2010, the RO notified the appellant that he did not provide any new evidence or information for reconsideration of his entitlement to a one-time payment from the FVEC Fund; and that his claim continued to be denied. He again submitted correspondence in June 2011 and in August 2011. In September 2011, the RO notified the appellant to submit evidence that is new and material. Records show that the appellant continued to submit additional correspondence and evidence. On May 22, 2012, the RO notified the appellant that a notice of disagreement was received on December 8, 2011, and that it could not be accepted because it was untimely. The Board finds that the July 2009 communication from the appellant may reasonably be construed as a valid NOD, which was filed within one year of the May 2009 rating decision. 38 C.F.R. § 20.201. The Veteran asserted that he served during World War II and that his name was included in his former commanding officer's roster but the U.S. officers had not included his name in their rosters due to limited men and officers. He also requested a hearing. Accordingly, the Board finds that the Veteran expressed dissatisfaction with the RO's determination and a desire to contest the result. It was not until May 22, 2012 that the RO informed the appellant that his communications had not been accepted as a NOD for initiating an appeal. Given these facts, the appellant's NOD with the denial of entitlement to a one-time payment from the FVEC Fund is timely. 38 C.F.R. § 20.302(a). ORDER A timely NOD was received to initiate an appeal with regard to the May 2009 rating decision; the appeal is granted. REMAND The appellant submitted a timely NOD from the denial of entitlement to a one-time payment from the FVEC Fund. The United States Court of Appeals for Veterans Claims (Court) has directed that where a claimant has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case with regard to the issue of entitlement to a one-time payment from the FVEC Fund. The Board will further consider the issue only if a sufficient substantive appeal is received in response to the statement of the case. [Attention is directed to the Veteran's request for a local hearing in the May 2009 notice of disagreement.] 3. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs